A child-abuse murder convict has been granted a resentencing due to a Tulsa County prosecutor’s “theatrical” use of a baby doll prop during closing arguments at trial.
Gregory Antwon O’Neal’s no-parole life sentence will be reconsidered after an appeals court found the prosecutor used the doll to demonstrate abuse that may not have contributed to the child’s death.
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“We cannot condone theatrical demonstrations of speculative theories, which are calculated to encourage an emotional reaction from the jurors,” the Oklahoma Court of Criminal Appeals wrote in an opinion filed Tuesday.
District Judge James Caputo sentenced O’Neal, now 30, on Sept. 23, 2013, after a jury found him guilty of first-degree child-abuse murder in the death of his 2-month-old daughter, Tianna Marie O’Neal.
Assistant district attorneys Sarah McAmis and Ben Fu maintained that O’Neal and the child’s mother, Tamara Matthews, were responsible for the baby’s multiple injuries, which included a skull fracture, subdural hemorrhages and shaking injuries.
Matthews, now 29, pleaded guilty May 5, 2014, to permitting child-abuse murder and is serving a 10-year prison sentence, records show.
A hearing in October confirmed that one of O’Neal’s prosecutors used the doll to simulate various acts of physical abuse, including slapping the doll, biting the doll, kicking the doll across the floor and/or against the wall and hitting the doll’s head against a table, according to the appeals court opinion.
Some of the abuse demonstrated pertained to injuries the evidence showed did not contribute to the child’s death, according to the opinion.
“The age and cause of the non-fatal injuries appears to be uncertain, and the manner in which the prosecutor demonstrated speculative injury scenarios to the jury is disconcerting,” the opinion states.
The District Attorney’s Office conceded there was no direct evidence that the child was “kicked” by anyone and pointed out that the prosecutor “openly admitted she did not know” if the child was ever kicked, the opinion states.
“This response only bolsters our conclusion that the true goal of the presentation was dramatic effect — not discussion of the evidence,” the opinion states. “The myriad ways in which the prosecutor used a prop to physically imagine the death of the victim, with ‘We don’t know’ as a refrain, was simply not a fair interpretation of the evidence.”
The court agreed with O’Neal’s claim that he had ineffective counsel, and ruled that if his attorney had objected to the demonstration, there is a “reasonable probability” he could have received a different sentence.
Judge Robert Hudson, joined by Judge Gary Lumpkin, dissented from the appeals court’s decision to grant O’Neal a resentencing.
In a written opinion, Hudson notes the lack of record showing the prosecutor’s exact behavior and that it was apparently not “egregious” enough for Caputo to intervene at the time.
“I believe we must resist the temptation to stifle permissible zealous advocacy by siphoning the life out of closing arguments as though we are programming — or, in this instance, reprogramming — robots,” Hudson states in his dissent, adding that the law already requires every jury to be instructed that attorneys’ arguments are not to be considered as evidence.
O’Neal’s resentencing hearing has yet to be scheduled, court records indicate.
Arianna Pickard 918-581-8413